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Thursday, January 21, 2010

Today the United States Supreme Court decided the long-awaited case of Citizens United v. FEC, overruling established precedent to declare unconstitutional statutory restrictions on the ability of corporations to pay for political advertisements. Back when most free speech cases were about obscenity or civil rights or anti-war protests, the more liberal members of the Court tended to take an expansive view of the First Amendment, while the more conservative members generally supported restrictions on speech. So today, when the five most conservative members of the Court are extolling the virtues of free speech as protected by the Fist Amendment, you have to wonder whether this case is primarily about free speech.

The Court conflated the issue of free speech with the issue of the money that is spent to air political advertising. Restrictions on corporate spending for political advertisements could have been distinguished from restrictions on speech itself, by treating them as "time, place and manner" restrictions, for example. Instead the Court justified allowing corporations virtually unlimited ability to pay for campaign commercials by invoking the values behind the First Amendment.

The Court also conflated the rights of corporate "persons" with the rights of natural persons. There are good reasons for treating corporations as persons under the law. The whole point of forming a corporation is to create an entity that is separate and distinct from any real person, so that the corporation's owners are not generally liable for the corporation's actions. At the same time, it may be necessary for the law to have adopted the legal fiction of corporate personhood in order to hold corporations legally accountable for their actions. But it seems inconsistent with that vision of treating a corporation as a distinct legal entity to at the same time treat the corporation as a collection or association of individuals expressing ideas protected by the First Amendment. Even though a corporation may be owned by human beings, directed by human beings, and may employ human beings, the corporation is still distinct from any human being. Therefore, such fictional persons, while they do have rights and responsibilities, need not have exactly the same rights as human beings. Corporations are legal creations of the state. If they are to be considered as being "endowed by their Creator with certain inalienable rights," their Creator is still a different creator than the one who created human beings. It would not even make sense to grant certain human rights to corporations, such as the right to vote (mentioned in the dissent), or the right to marry. As Justice Stevens stated in dissent:

[C]orporations have no consciences, no beliefs, no feelings, no thoughts, no desires. . . . [T]hey are not themselves members of "We the People" by whom and for whom our Constitution was established.

Instead of treating corporations as disfavored persons, however, as Justice Stevens and the other dissenters advocated, the Supreme Court invoked the values behind the First Amendment to support a vision in which all interests groups can freely participate, limited only by their imaginations and their wallets. It may be worrisome to imagine a world in which the networks are flooded with corporate political advertising, and candidates appear to be sponsored by corporations, but that is the wide-open world the Supreme Court now envisions, in which the best remedy for potentially harmful or misleading speech may be the opportunity to present more speech.

Of one thing we can be certain. This decision opens the door to a lot of new and interesting legal questions, such as whether Congress can devise new restrictions on campaign expenditures without amending the Constitution; whether Congress or the states can re-define what it means to be a corporation so as to limit corporations' ability to participate in electioneering; whether other remedies (e.g., derivative suits, defamation suits) can be pursued against corporations that spend excessively on campaign-related advertising. If government is forced to exit the field, that may leave it up to private parties to fight these and other issues out in the legislatures, the courts and other places.

2
comments:

Thoughtful post, as always. Imagine all the private money that will now be funneled into shell corps which will then be used to engage in political advertising. This decision will NOT elevate the quality of political discussion in this country. It opens the door to all kinds of abuse. Political discussion is going to suffer. Worst of all, the Supreme Court can declare unconstitutional any attempts to regulate that speech, overriding the attempts of the people to rein in this kind of abuse. The Supreme Court has gone out of control.

Eugene, I put another version of this post on my political blog, where I went into some of the political implications of this decision in a little more detail.

http://www.hopeandchange.net/2010/01/corporate-free-speech.html

It brings to mind Jesse Ventura's suggestion that politicians should be required to wear jackets like NASCAR drivers disclosing all of their corporate sponsorships. That may be the only way the public will be able to tell who these candidates are beholden to.

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